Hablutzel v. Home Life Ins. Co. of New York

• Decision Date: 03 May 1932
• Docket Number: No. 21826.,21826.
• Parties: HABLUTZEL v. HOME LIFE INS. CO. OF NEW YORK.
• Court: Missouri Court of Appeals

52 S.W.2d 480

HABLUTZEL v. HOME LIFE INS. CO. OF NEW YORK.

No. 21826.

St. Louis Court of Appeals. Missouri.

May 3, 1932.

Rehearing Denied May 18, 1932.

Appeal from St. Louis Circuit Court; M. Hartmann, Judge.

Action by George F. Hablutzel against the Home Life Insurance Company of New York. Judgment for plaintiff, and defendant appeals.

Affirmed.

Jones, Hocker, Sullivan & Angert and Raymond J. Lahey, all of St. Louis, for appellant.

Leahy, Saunders & Walther and J. L. London, all of St. Louis, for respondent.

SUTTON, C.

This is an action in equity commenced in the circuit court of the city of St. Louis, on April 18, 1930. Plaintiff holds a policy of insurance on his life for the sum of $2,000, issued by the defendant, on June 1, 1915. The policy contains the following provision: "If, after one full annual premium shall have been paid hereon and before default in the payment of any subsequent premium, the insured shall, before attaining the age of sixty years, furnish due proof to the Company that he has become totally disabled by bodily injury or by disease, so that he is and shall be permanently, continuously and wholly incapacitated for life and prevented thereby from pursuing any gainful occupation, the Company by endorsement hereon shall agree to waive the payment of premiums which may thereafter fall due during the continuance of such disability."

Plaintiff's wife, Minnie Hablutzel, is the beneficiary named in the policy.

Premiums on the policy in the sum of $39.94 are payable semiannually, on each 1st day of June and December. Plaintiff paid the first semiannual premium at the time of the issuance of the policy, and paid the premiums subsequently falling due up to the time of the commencement of this action. Plaintiff was forty-six years old at the time of the issuance of the policy, and was sixty-two at the time of the commencement of this action. In April, 1920, plaintiff fell down a flight of stairs and sustained an injury to his spine, whereby he was totally and permanently disabled from pursuing any gainful occupation. Notwithstanding his injury, being in ignorance of his right to be relieved from the payment of the premiums on the policy during his disability, he continued to pay the premiums thereon. In August, 1930, plaintiff, being then over the age of sixty years, was advised of his right to be relieved from the payment of the premiums. He thereupon made demand upon the defendant for the premiums paid since his disability began. This was refused by the defendant. Thereupon plaintiff brought this action to recover such premiums, and to compel the defendant to indorse on the policy its agreement to waive the payment of premiums during the continuance of his disability.

Upon the trial, the court gave judgment requiring that defendant make an indorsement on the policy waiving the payment of any further premiums, and that defendant return to plaintiff all premiums paid by him since the date of his injury, beginning with the premium paid in June, 1920, together with interest, amounting to $652.32 principal, and $236.94 interest, making a total of $889.26. From this judgment, defendant appeals.

Defendant's contention, for the reversal of the judgment here, is that there is no evidence to show that plaintiff, before attaining the age of sixty years, furnished due proof of his disability.

There is no contention concerning the fact of plaintiff's disability. The evidence showing his continuous total disability from the time of his injury up to the time of the trial is well nigh conclusive, and there is no evidence whatever to the contrary. The evidence shows that he was suffering from locomotor ataxia, resulting from the injury to his spine, an ailment which is incurable and progressive, and will grow worse until death.

Plaintiff, prior to his injury, was a steam-fitter and wrecking engineer. He was employed, and earning $12 per day. He could read and write but indifferently. He testified that he did not know what was in the policy, and went on paying the premiums after his injury; that he just took the agent's word for what was in the policy; that he knew he was insured for $2,000; and that was all he knew was in the policy. On cross-examination, after having had the provision of the policy with respect to the waiver of premiums read to him, and being asked if he understood it, he answered: "To tell you the truth, I don't know anything about that policy, or insurance. I could read the thing over fifty times and know a darn sight less when I got through, and nine out of ten that has insurance is the same way. I didn't know it was in there, and if I had I certainly would have acted differently."

Mrs. Hablutzel, plaintiff's wife, testified: "My custom and habit was to pay the premium on the policy on the first of every six months. I always paid it. I took care of it because my husband was sick. I paid it at the defendant's office in St. Louis. I talked to Miss Samuels at defendant's office, concerning the premium due June 1, 1922. I told her I didn't have the funds to pay the premium and asked her to give thirty days extension. I told her I was my husband's main support and that I had a pretty hard time making ends meet, and she gave me that extension. The premium was not due until thirty days after June 1st, but it worried me because we had always paid it around the first of June, or the first of December. Miss Samuels was the local cashier for the Home Insurance Company. She always waited on me. I told her that my husband was permanently disabled, and the doctor did not expect him to live. I did not know at that time that the policy contained the total disability clause. I told Miss Samuels that my husband was totally and permanently disabled. I told her the doctor said he was totally and permanently disabled and that he was very ill. The premium due on June 1, 1922, I paid to Miss Samuels on June 24th."

Margaret Hablutzel, plaintiff's daughter, testified: "I recall going to the office of the Home Insurance Company in 1922, with my mother, and asking for an extension of the time for paying the premium then due on the policy. That was in the early part of June, because I had just come from school at the end of the school term. Mother always spoke to Miss Samuels, who was always so nice to her when she would pay the premiums. At the time we went down we were having a very hard time because my father had just come from the hospital. Mother went down and asked if she could have an extension, because she didn't see how she could possibly raise the money at that time. Miss Samuels was very nice and said she had thirty days grace. Mother told her how dad was permanently disabled, and that it was up to her to take care of me and the home. At that time I was only thirteen years old, and didn't know anything about the disability clause in the policy. Mother and I went to the Home Life Insurance Company office in the early part of June and asked if we could get a thirty days extension because we couldn't pay the premium at that time — the funds were so low. Miss Samuels said we could have thirty days grace, and she would make a note of it and that we should not worry. Mother told her my father was permanently disabled and that two or three doctors had only given him six months to live. The doctors stated they would only give him six months to live."

Miss Samuels, being produced by defendant, testified: "I have been connected with the Home Life Insurance Company since 1919, at its office in St. Louis. My duties were in connection with premiums. I was agency cashier. I do not recall the conversation testified to by Mrs. and Miss Hablutzel. I do not recall it definitely enough to deny or confirm it. The usual procedure in handling disability claims is that the insured, or some one in the insured's family, notifies the company of his disability, and then we get in touch with the agent who wrote the policy, and he has to make a report that the insured is disabled and is claiming on the disability. The claim is to be filled out by the person disabled or some member of his family. I have had conversations with Mrs. Hablutzel. All policy holders talk to me. When the company is notified of a permanent disability it is the duty of the agent who wrote the policy to go out and take proofs. At the time Mrs. Hablutzel says she had this conversation with me it was not my duty then to have charge of the disability claims unless they asked me something about them. At this time I do not recall definitely that I ever had any conversation with either Mrs. or Miss Hablutzel concerning the disability or sickness of their husband or father. It is all vague to me; I don't remember anything about it. The first I remember is when some woman of another company came in and notified us that the insured was disabled, and I immediately sent for the papers. That was about May, 1930."

Concerning the question as to when the waiver of the payment of the premiums begins under policy provisions similar to the provision under review here, there are two lines of...